POSSESSION OF SCHEDULED SUBSTANCE FOR THE PURPOSE OF TRAFFICKING

Overview

Possession for the purpose of trafficking (P4P) in a scheduled substance is a common charge that carries ever increasing penalties. It is not technically a criminal offence. In Canada, possession for the purpose of trafficking is a contravention of the Controlled Drug and Substances Act (CDSA), which outlines the offences and penalties for violations. For all intents and purposes, it is prosecuted the same way as a criminal offence so this distinction might be unnecessary.

Definition

Possession of Scheduled Substance for the Purpose of Trafficking: For a P4P offence to be made out, it is required that the accused have possession of the particular substance in question. In this case it is the amount of substance found that raises a presumption that the possession is for trafficking purposes, not consumption purposes. For this offence, it is very important that the substance be legitimate. For instance, possessing a large quantity of baking powder in clear baggies will not be sufficient.

Evidence

This offence can be investigated in a variety of ways. The police might find large quantities of drugs pursuant to an executed search warrant at the home of a suspected drug trafficker. While not caught actually distributing the substance, officers might discover drugs hidden in a safe in the suspect’s closet or in a drawer in a bedroom. The substance is seized, weighed, and ultimately tested to determine if it is in fact a scheduled substance. Sometimes this offence arises incidental to another valid investigation. For instance, police enter the home of a feuding couple and discover drugs in plain view on the coffee table.

It is common in P4P investigations for police to gather other indicators of trafficking besides the actual drugs. Items such as weighing scales, bags, debt lists, quantities of cash, plus other substances designed to dilute the substance (make more of it), or weapons might be included in the items seized to convince the court that trafficking behaviour was present.

Penalty

In law, like the trafficking offence, there is a tremendous difference in penalty depending on the Schedule in which the substance is registered. For instance, possession of cocaine for the purpose of trafficking is punished much more severely than P4P in marijuana. Even within a Schedule, penalties differ. P4P in crack cocaine will attract higher sentences than in powdered cocaine.

The reason for the different penalties is due to the particular scheduled substance’s perceived harm to society and also the typically more lucrative compensation associated with its distribution.

Obviously, the quantities in issue will determine a great extent any sentence imposed. For this offence, normally there is a rather large quantity of drugs discovered. The type of substance will dictate how much is required to attract the trafficking presumption. For instance, 10 grams of crack cocaine might lead to a P4P charge whereas a minimum of 30 grams of marijuana is required. Still, larger quantities lead to more severe penalties. Sentences for P4P can rise to the same level as trafficking but typically not quite as high.

In 2012, a series of amendments to the CDSA resulted in many mandatory minimum sentences associated with certain types of P4P (usually where the accused has a prior similar offence or the possession was accompanied by other factors like violence or weapons. These minimum sentences can be for a period of 1-2 years.

Defence Strategy

The most common type of defence in drug-related prosecutions is for an accused to argue that their Charter rights have been violated. The Canadian Charter of Rights and Freedoms is part of our Constitution and police officers must respect an individual’s rights while they are investigating crime. Unfortunately, the law in Canada has shifted in recent years to a certain level of tolerance of violations of a person’s rights in favour of a pragmatic approach.

A violation of a person’s Charter rights enables that person to argue that the violation of their rights is more egregious than the drug offence for which they are charged and ask the judge to correct the injustice by excluding the evidence (typically leading to an acquittal of the accused). Acquittals are becoming increasingly rare.

Other types of defence for possession cases involves the accused introducing a doubt about whether they had knowledge and or control over the drugs found.